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September 18, 1997


Appeal from the Circuit Court of Cook County, the Hon. James M. Schreier, Judge, presiding.

As Corrected November 26, 1997.

The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

Upon remand of this cause to the circuit court of Cook County for a new trial ( People v. Kidd, 147 Ill. 2d 510, 169 Ill. Dec. 258, 591 N.E.2d 431 (1992)), a jury found the defendant, Leonard Kidd, guilty of one count of arson and 10 counts of murder in the deaths of 10 children who died as the result of a fire on October 28, 1980, in a residential building comprised of five apartments. At a separate sentencing hearing the same jury found defendant eligible for a death sentence and thereafter, upon consideration of aggravating and mitigating circumstances, determined that there were no mitigating circumstances sufficient to preclude the imposition of a death sentence. At the phase of his trial in which his guilt was determined, defendant represented himself, and the trial court appointed the public defender as standby counsel. However, at both phases of the sentencing hearing, defendant wished to be, and was, represented by the public defender, who filed a post-trial motion seeking a judgment of acquittal or, in the alternative, a new trial and a new sentencing hearing. At the hearing on the post-trial motion, conducted on December 16, 1994, defendant's counsel tendered to the court three pro se post-trial motions by defendant for a new trial. Following that hearing, the trial court denied defendant's post-trial motions, including that filed by counsel as well as those proffered by defendant pro se, and sentenced him to death accordingly upon the convictions of murder. The cause comes directly to this court for review (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603). Defendant presents for our consideration 13 issues, many of which consist of numerous subissues. We affirm the judgment of the circuit court.

Initially, defendant contends that this cause should be remanded for a new trial because he was taking psychotropic drugs "under medical direction" during trial and was entitled to a fitness hearing but did not receive one. Upon this court's remand of this cause for retrial through the conclusion on September 14, 1994, of the aggravation and mitigation phase of defendant's sentencing hearing, section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 1992)) provided in relevant part that "[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." However, no hearing is required where the defendant's right to a fitness hearing pursuant to section 104-21(a) is not established ( People v. Britz, 174 Ill. 2d 163, 196, 220 Ill. Dec. 388, 673 N.E.2d 300 (1996)) and the trial court has not abused its discretion in concluding that no bona fide doubt of unfitness is present. People v. Kinkead, 168 Ill. 2d 394, 411, 214 Ill. Dec. 145, 660 N.E.2d 852 (1995). We note that defendant appears to make no claim that the trial court so abused its discretion as to bona fide doubt of fitness.

In the first of defendant's pro se post-trial motions, he makes, among others, the following two assertions: (1) "At the time of the trial I Leonard Kidd was using drugs. Also befor [ sic ] the trial I had some weed" and (2) "With the coc [ sic ] I had in me I did not understand everything was going on and I did not no [ sic ] about the law." In the third of his pro se post-trial motions, he asserts,

"1. Not only in Judge Schreier [ sic ] courtroom [where the instant case was tried] but also in Judge Christy Berkos [ sic ] courtroom [where an unrelated case against the defendant was tried] I was on drugs.

2. The pysch medication I was on would always have me feeling sleep [ sic ] & I did tell Judge Berkos I did not understand everything was going on when I was in his courtroom.

3. When I was doing drugs it would be cocaine or weed. The case's [ sic ] was to [ sic ] much on my mind."

At the hearing on his post-trial motion, the trial court expressed the wish that defendant testify under oath concerning the allegations he had made in his pro se motions so that a determination of credibility could be made for the record. Testifying that during the trial he was using marijuana and cocaine, defendant added, "And time that I wasn't using that, I was, I would be taking my Synaquan (Phonetic) before I come over here and it make me drowsey [ sic ] a lot of times." In response to the defendant's claim that he was "high" on drugs during his trial in the instant case, he named the drugs he used as follows: "Cocaine, marijuana. When I didn't have that I used my Synaquan." Although defendant indicated during his testimony that he had taken the drugs prior to being searched before being brought to court, he subsequently testified that he had had the drugs in his mouth when he was searched prior to being brought to court and that when he had arrived at the courtroom, he had used "cocaine and reefer in the washroom." Defendant stated that he had obtained the cocaine and "reefer" he used "through the jail" from inmates. He described the effects of marijuana and cocaine upon him: "Had me high enough lost my mind, if you want to know what that is."

At the conclusion of defendant's testimony, the trial court found that his testimony "lacks any credibility" and that "it is just a ploy, a maneuver, a machination to try to undue [ sic ] this conviction." The trial court found further as follows:

"Because defendant lacks credibility that in my judgment he was not using drugs during the trial in this Court, and I further find that he exhibited absolutely no sign of drug use.

He was competent, he was totally mentally fit, he was as sober as anyone in the Courtroom, and he didn't do a bad job as his own lawyer.

And he could not have done as well as he did under the influence of drugs."

In support of defendant's position that he was wrongfully denied a fitness hearing to which he was entitled pursuant to section 104-21(a), he maintains in his brief to this court that in testimony during his motion for a new trial the fact emerged that he was taking the "prescribed antidepressant[ ] Sinequan." However, absent from the record in the trial court is any evidence that the Sinequan defendant testified to having taken was prescribed for him or was in any way taken, as section 104-21(a) expressly requires, "under medical direction." A defendant must be receiving psychotropic drugs "under medical direction" to be entitled to a hearing on the issue of his fitness while under medication. By virtue of having failed to satisfy this element of section 104-21(a), defendant has necessarily failed to establish his entitlement to a fitness hearing with regard to his asserted taking of Sinequan. Hence, no new trial is warranted on this basis.

In further support of his contention that he was improperly denied a fitness hearing to which he was entitled under section 104-21(a), defendant declares in his brief that throughout his trial he was taking Dilantin to control epileptic seizures and that "according to the record in another case before this Court, People v. Kidd, No. 76490, from time-to-time [ sic ], Tegretol (another anti-seizure medication) and Elavil (a tricyclic antidepressant), were also prescribed for him." In Britz this court construed the reference in section 104-21(a) to "psychotropic drugs or other medications" as being limited to psychotropic drugs or other such like medications, with the result that a nonpsychotropic medication is insufficient to trigger the operation of the statute. Britz, 174 Ill. 2d at 196-97. In the unrelated case against this same defendant of People v. Kidd, 175 Ill. 2d 1, 18-19, 221 Ill. Dec. 486, 675 N.E.2d 910 (1996), which is the case to which he refers in his brief, we determined, in reliance upon Britz, that Dilantin is not a psychotropic drug for purposes of the fitness provision of section 104-21(a) with the result that defendant was not entitled to a fitness hearing under that section. That determination applies equally to defendant's claim here concerning his use of Dilantin during trial and is dispositive of it.

With respect to defendant's claims about his use of Tegretol and Elavil as shown by the record in Kidd, we stated there that defendant had "found references in various portions of the record in this case to his prior treatment with two other drugs: Tegretol, another epilepsy medication, and Elavil, an antidepressant" ( Kidd, 175 Ill. 2d at 19). With regard to his use of Tegretol and Elavil in Kidd, we concluded that "there is no indication in the record that the defendant was actually receiving a psychotropic drug at any point near the time of trial or sentencing in this case. The references to his earlier treatment all predate, by substantial periods, the beginning of the defendant's trial, in May 1993" ( Kidd, 175 Ill. 2d at 20). We declined to adopt his argument there and, thus, to "order a remand for development of a further evidentiary record" concerning these two medications, as he had requested, because to do so "would mean that a remand must be available in every case in which the record contains some reference to the defendant's long-ago treatment with a psychotropic drug" ( Kidd, 175 Ill. 2d at 20). In light of our disposition there and the fact that retrial in the instant case occurred well over a year after his trial in that case began in May of 1993, we find his contentions here concerning the use of Tegretol and Elavil singularly unpersuasive.

Defendant contends next that he did not knowingly and intelligently waive the right to assistance of counsel because he is "a brain-damaged and epileptic retarded man who depended on anti-seizure medication and who also received anti-depressants." Asserting that his "very condition prevented a knowing and intelligent waiver," he argues, inter alia, that he lacked "the requisite comprehension" to waive the right to counsel intelligently and knowingly; that in light of his "disabilities," the record demonstrates that he did not knowingly and intelligently waive the right to counsel; that his "mental deficiencies shape the totality of circumstances surrounding his purported waiver of rights"; that his "history of mental retardation, his brain damage, his epilepsy," all establish that, however willingly he waived counsel, he did not do so knowingly or intelligently; that the admonishments he received in no way cured or corrected his "underlying disabilities"; and that his waiver was unknowing because the admonishments were not given in a way suited to his "mental limitations." He cites examples of his conduct while representing himself that, in his view, support his claims concerning his disabilities and concomitant failures of understanding and maintains that People v. Lego, 168 Ill. 2d 561, 214 Ill. Dec. 264, 660 N.E.2d 971 (1995), and Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993), govern this case and call for reversal.

As we said in Lego, although a court may deem a defendant's decision to represent himself unwise, if he makes his decision freely, knowingly, and intelligently, the court must accept it out of that respect for the individual which is the lifeblood of the law. Lego, 168 Ill. 2d at 564. Because an accused who manages his own defense relinquishes many of the traditional benefits associated with the right to the assistance of counsel, in order to represent himself the accused must knowingly and intelligently forgo those relinquished benefits. Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 581, 95 S. Ct. 2525, 2541 (1975); Lego, 168 Ill. 2d at 564. A waiver is, ordinarily, an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938); Lego, 168 Ill. 2d at 564. When a defendant seeks to waive counsel, the trial court must not only determine that he is competent to stand trial but also satisfy itself that his waiver of this constitutional right is both knowing and voluntary. Godinez, 509 U.S. at 400, 125 L. Ed. 2d at 333, 113 S. Ct. at 2687. Although a defendant need not possess the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of such representation, so that the record will establish that " 'he knows what he is doing and his choice is made with eyes open.' " Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581-82, 95 S. Ct. at 2541, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 275, 63 S. Ct. 236, 242 (1942); Lego, 168 Ill. 2d at 564-65. The requirement of knowing and intelligent choice calls for nothing less than a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Patterson v. Illinois, 487 U.S. 285, 292, 101 L. Ed. 2d 261, 272, 108 S. Ct. 2389, 2395 (1988); Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141 (1986); Lego, 168 Ill. 2d at 564-65. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances of that case, including the background, experience, and conduct of the accused. Johnson, 304 U.S. at 464, 82 L. Ed. at 1466, 58 S. Ct. at 1023; Lego, 168 Ill. 2d at 565.

The defendant's claims of brain damage and mental retardation appear to be based largely upon the testimony of Dr. Linda Wetzel, a neuropsychologist, whom defendant called to testify during the aggravation and mitigation stage of his sentencing hearing. Dr. Wetzel testified that in her practice she administers, interprets, and evaluates neuropsychological tests, which are tests of brain behavior and are primarily designed to measure any brain impairment. This witness gave defendant a battery of neuropsychological tests while he was in jail in May of 1993. Prior to testing defendant, Dr. Wetzel had in her possession an IQ test administered by Dr. Karen Smith as well as school records of IQ tests performed when defendant was approximately 7, 10, and 15 years old. Subsequent to the testing performed while defendant was in school, he was classified as educationally mentally handicapped. Dr. Wetzel did not repeat the IQ test that had recently been administered to defendant by Dr. Smith but did administer the wide range achievement test, which is a test measuring the grade level of reading, mathematics, and spelling, and the multilingual aphasia examination, which is a test designed to measure the expression and comprehension or understanding of the English language.

Dr. Wetzel testified that in 1993 Dr. Smith measured defendant's full scale IQ at 73 and that an IQ between 70 and 75 is documented as "at the high end of the mentally retarded range of intelligence." Dr. Wetzel stated that Dr. Smith classified defendant as "borderline mental retarded" and not mentally retarded; later Dr. Wetzel expressed her own opinion that defendant is "borderline mental retarded." Concerning the results of the tests that Dr. Wetzel had administered herself, the witness said that on the wide range achievement test she found defendant's reading and spelling ability at or below the third-grade level and his mathematics ability at the third-grade level. While she found his concentration "very poor," which made it difficult for him to learn or remember new information, she found his language fluent and grammatical, adding, "He's good at expressing himself." With respect to his comprehension of sentences, however, she found that if the sentences became too complex, a lot of repetition became necessary and the witness had to slow down, even in explaining how defendant was to complete some of the tests. For the witness, the need to repeat during testing indicated poor comprehension and, in his case, difficulty in concentrating. She also found his memory, visual motor ability, and capacity for abstraction to be impaired as well as his ability to learn "just a list of words" that she repeated to him several times.

Dr. Wetzel testified that she was aware of defendant's treatment with Dilantin, which she described as a common medication for a seizure disorder; such a disorder was, for her, "strong evidence of an impairment of the brain." She stated that she had learned from the defendant that as the result of a car accident at the age of 14 he had had a head injury involving a loss of consciousness. Defendant's scores on the neuropsychological tests fell within "an impaired range," she said, ranging from mildly to severely impaired on all the tests she administered to him. Describing defendant as a man with considerable neuropsychological brain impairment, she expressed the opinion, based upon the results of her testing, that defendant has "impaired brain functions."

On cross-examination the witness testified that she had spent a total of approximately three hours with the defendant and that the neuropsychological tests she had administered to him require the cooperation of the person taking the test. Asked whether the person being tested could easily provide misleading information, Dr. Wetzel responded, "I think that there is [ sic ] certain patterns we expect to see, especially when we spend 2 or 3 hours administering tests, which oftentimes indicate when a person is not responding accurately and at his full level of cooperation." When she gives the wide range achievement test, she said, she gives the person being tested words to write out until he or she makes 10 consecutive errors, whereupon the test is stopped; in defendant's case he was able to write three words and then made 10 consecutive errors, whereupon she stopped the test, in accord with the standard administration of it. She testified that persons with epilepsy are usually able to function normally when they take Dilantin. She defined "malingering" as "faking on tests to make yourself look worse than you really are."

During this phase of the sentencing hearing, defendant called also as a witness Dr. George Savarese, a clinical social worker who had reviewed available records and had conducted interviews to prepare a psychosocial developmental evaluation of him. Among those Dr. Savarese had interviewed were Dr. Wetzel and Dr. Smith. Dr. Savarese testified that defendant had been diagnosed as being mentally retarded on three separate occasions, that is, at the ages of 7, 10, and 15, with scores of 63, 67, and 64, respectively, at those ages, scores that were, he said, "all well within the mental retardation range." He stated further,

"For the issue of mental retardation, though, is not simply an issue of IQ that indicates that. There have to be other areas of social adaptation as it's referred to, ways to [ sic ] functioning and living in the community that also need to show some kind of impairment as well.

Specifically there were 3 key areas that it appears that Leonard had difficulties in terms of this functioning. With regard to the social deficits, skills and relating with other people appears to be markedly impaired. Tremendous tendency to act very impulsively in close interactions with other people. And particularly with problems with peers that he had at school was a lot of difficulty."

Dr. Savarese also noted that defendant had had problems with self-direction, which is another area of social functioning considered to be within the framework of understanding a diagnosis of mental retardation, as well as problems in the area of "home living," another area of social functioning, which pertains to the ability to function "within a home, in a neighborhood, in one's environment."

In rebuttal during this stage of the sentencing hearing, the State presented a stipulation between it and defendant that if Dr. Albert Stipes were called as a witness, he would testify that he is a licensed psychiatrist employed by the Psychiatric Institute of the circuit court of Cook County; he would be qualified as an expert in the field of forensic psychiatry; and he would testify that on December 9, 1985, pursuant to a court appointment, he had examined defendant and had concluded that the defendant was malingering.

Defendant bases his contention that he was unable to waive his right to the assistance of counsel knowingly and intelligently, in part, on facts that are disputed in the record. Whereas in Lego the testimony of the defendant's expert witnesses stood unrefuted, here evidence crucial to defendant's claim of mental impairment is contradicted. Although Dr. Wetzel described an IQ such as defendant's as falling "at the high end of the mentally retarded range of intelligence" and expressed the opinions, primarily on the basis of defendant's performance on tests, that he suffered from impaired brain functions and is "borderline mental retarded," Dr. Stipes concluded that defendant was malingering, defined by Dr. Wetzel as "faking on tests to make yourself look worse than you really are." Moreover, although defendant relies, in part, on the fact that he was taking anticonvulsant medication to support his claim concerning waiver of the right to the assistance of counsel, Dr. Wetzel testified on cross-examination that persons with epilepsy taking the anticonvulsant Dilantin are usually able to function normally. With respect to defendant's further reliance in support of this claim on his having received "anti-depressants," we are mindful of the trial court's assessment of defendant as "totally mentally fit" during trial after the trial court heard defendant's testimony concerning his alleged use of drugs at trial, including the antidepressant Sinequan. While we are uncertain whether by "anti-depressants" defendant refers as well to the antidepressant Elavil, as he did in the prior issue presented for review, if such a claim is, indeed, intended in support of his contention of invalid waiver of his right to the assistance of counsel, we deem it meritless for the reasons already expressed in our consideration of the prior issue. Thus, on the basis of the record before us we are unable to say that the defendant's purported mental limitations and disabilities precluded his knowing and intelligent waiver of the right to the assistance of counsel.

Defendant contends that his waiver of the right to the assistance of counsel was invalid for the further reason that in admonishing him pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), the trial court stated incorrectly both the charges and the minimum sentence upon conviction. Although one of the charges against the defendant was arson, the trial court admonished him that he was charged with aggravated arson. *fn1 Further, although the trial court admonished defendant that the minimum sentence was 20 years, defendant was convicted on May 19, 1993, of murdering four persons on January 12, 1984, with the result that these four prior murder convictions mandated a minimum term of natural life imprisonment in the instant unrelated case; an amendment to section 5-8-1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(1)), effective July 1, 1980, provided that for first degree murder "if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment." 730 ILCS Ann. 5/5-8-1, Historical & Statutory Notes, at 795 (Smith-Hurd 1992).

The record reveals that in court on August 23, 1994, the assistant public defender who was representing defendant following remand notified the court that defendant had informed him "after a recent jail visit that it's his desire in this matter to go, pro se." Counsel indicated to the court that his relationship with defendant "goes back approximately 10 years" and that he had explained to defendant that "absolutely, he has a right to go pro se" but that it was "probably not in his best interest" to do so. After counsel said that defendant wished to address the court on the issue, the following colloquy between defendant and the trial court occurred:

"DEFENDANT KIDD: Yeah, I feel in my best interest to go, pro se.

THE COURT: Well, of course, I would disagree. I think you would be absolutely and totally foolish to undertake this trial without a good lawyer, an experienced lawyer in this case. A lawyer who has already fault [ sic ] one trial for you and knows the case and has always been extremely vigorous and energetic and conscientious in trying to defend you.

You know very well that you can receive the death penalty on this case. You were for 20 years in the Illinois Department of Corrections through natural life to the death penalty, and you would be called upon to make your own arguments, to make your own objections, gather your own legal written instructions at the end of the case, to introduce evidence.

You have, I think, a good idea from your trials, all that it takes to conduct a trial, to conduct a defense. And you ...

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